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April 25, 2006


Paul Lehto

Yes, Stewart v. Blackwell applies Bush v. Gore equal protection conceptualizations to voting systems, a new step. However, the conceptual framework used of notice v. non-notice technologies inherently discriminates against paper ballots because they can't grow mouths and talk in order to tell the voter that they've undervoted. That capability (in touch screen DREs) will cause many people who do not wish to vote in a race to vote anyway -- causing touch screen "notice" systems to always have lower "lost vote" numbers or "residual vote" numbers than the so-called "non-notice" technologies like paper ballots.

Only if the equal protection analysis broadens from the narrow "residual vote" analysis used by Stewart v Blackwell will the courts reach fair results in choosing voting systems via this type of litigation.

In following Bush v. Gore, the Blackwell court is adopting its condemnation of discretion and preference for clear objective rules articulated in advance originally set forth in Bush v. Gore (with all of its heavily documented faults). However, brightline rules like those preferred by Bush v. Gore by their very nature are easier to administrate, but they also create more injustices because some voters will end up on the wrong side of the line but no common sense arguments can be made. On the other hand, "voter intent" standards will create more justice overall if fairly administered but are also somewhat more subjective and therefore subject to abuse of discretion if not monitored. (Note, however, that the adversarial nature of most recount processes tends to greatly mitigate any such possible abuse).

In any case, the Bush v. Gore case puts a great pressure against decentralized, county-based elections and in favor of uniform statewide rules. Stewart v. Blackwell extends that pressure to uniform statewide voting systems per Stewart v. Blackwell. This despite Congress's express intent in the Help America Vote Act of 2002 that punchcards, central count optical scan systems, and paper ballot systems could still be used. The Blackwell court has, sub rosa, overruled HAVAs exception for those voting systems from the requirement of giving notice as to undervotes so long as states provided voter education programs. Yet at no point does the Stewart v. Blackwell court address the profound problems with the secret vote counting that takes place on touch screens leading to serious doubt that anybody's vote is properly counted -- including but not limited to undercounted minorities.

There is a rush to unformity going on, and it is a rush to uniformity based on strict rules. We will now not so much have a right to vote and a right to have that vote COUNTED, but a right to vote and a right to an equal CHANCE to have that vote counted based on brightline rules.

Machines will inherently be better at being stupidly unjust and following brightline rules. Yet even if all the dreams come true of the voting machine fans, we'll all be standing in long lines to vote on these bottlenecking, expensive machines.

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